Mapp v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,LORD JUSTICE MILLETT,LORD JUSTICE HUTCHISON |
| Judgment Date | 27 February 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0227-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENI 96/0179/E QBENI 96/0181/E QBENI 96/0182/E |
| Date | 27 February 1997 |
[1997] EWCA Civ J0227-8
Lord Justice Hirst
Lord Justice Millett
Lord Justice Hutchison
QBENI 96/0179/E
QBENI 96/0180/E
QBENI 96/0181/E
QBENI 96/0182/E
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Sir Michael Davies)
Royal Courts of Justice
MR. J. PRICE Q.C. (instructed by Messrs Farrer & Co., London, WC2A) appeared on behalf of the Appellant/Defendant.
MR. T. SHIELDS Q.C. (instructed by Messrs Russell Jones & Walker) appeared on behalf of the Respondents/Plaintiffs.
In actions for defamation where questions as to the meaning of the words complained of are in issue, as they nearly always are, the functions of the judge and the jury have always been different. It is for the judge to rule, when asked to do so, whether the words are capable of bearing a particular meaning or meanings alleged in the statement of claim; in other words, to lay down the limits of the range of the possible defamatory meanings of which the words are capable. It is for the jury to determine the actual meaning of the words within that permissible range. The rationale behind this division of function was described by Diplock LJ in Slim v. Daily Telegraph [1968] 2 QB 157,174 as follows:
"The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact."
Traditionally, any such ruling has been sought and given at the trial itself unless tried as a preliminary issue. Any earlier interlocutory proceedings were confined to a summons to strike out under O. 18,r.19, which of course only applies in plain and obvious cases. However, by O. 82,r.3(a), which came into force on 1 st September 1994, it is now provided as follows, under the heading "Ruling on meaning":-
"(1) At any time after the service of the statement of claim either party may apply to a judge in chambers for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the pleadings.
(2) If it appears to the judge on the hearing of an application under paragraph (1) that none of the words complained of are capable of bearing the meaning or meanings attributed to them in the pleadings, he may dismiss the claim or make such other order or give such judgment in the proceedings as may be just …."
This new rule superseded the old O. 18,r.19 procedure.
In the present case, the defendants applied under that rule to Sir Michael Davies, sitting as a judge of the Queen's Bench Division, for an order that the words complained of in the present case are incapable of bearing the meaning attributed to them in the statement of claim. He declined to do so. It is against that ruling that the present appeal is brought.
Before considering the facts of the present case, I wish to explore the proper approach to be adopted by a judge when a ruling under O. 82,r.3(a) is sought. In Lewis v. Daily Telegraph [1964] AC 234, where the words complained of alleged that the fraud squad were inquiring into the affairs of the plaintiff company, Lord Reid, in his now classic judgment, stated as follows at page 258.
"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs….
What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief, or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning….
Generally the controversy is whether the words are capable of having a libellous meaning at all, and undoubtedly it is the judge's duty to rule on that. I shall have to deal later with the test which he must apply. Here the controversy is in a different form. The respondents admit that their words were libellous, although I am in some doubt as to what is the admitted libellous meaning. But they sought and seek a ruling that these words are not capable of having the particular meaning which the appellants attribute to them. I think that they are entitled to such a ruling and that the test must be the same as that applied in deciding whether the words are capable of having any libellous meaning….
In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. So let me suppose a number of ordinary people discussing one of these paragraphs which they had read in the newspaper. No doubt one of them might say, 'Oh, if the fraud squad are after these people you can take it they are guilty.' But I would expect the others to turn on him, and if he did say that, with such remarks as 'Be fair. This is not a police state. No doubt their affairs are in a mess or the police would not be interested. But that could be because Lewis or the cashier has been very stupid or careless. We really must not jump to conclusions. The police are fair and know their job and we shall know soon enough if there is anything in it. Wait till we see if they charge him. I wouldn't trust him until this is cleared up, but it is another thing to condemn him unheard.'
What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression."
In Jones v. Skelton [1968] 1 WLR 1360, a decision of the Privy Council, Lord Morris of Borth-y-Guest, giving the judgment of the Board, stated as follows:
"It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation…. The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."
Finally, in Morgan v. Odhams Press Limited [1971] 1 WLR 1239, Lord Morris of Borth-y-Guest described the role of the judge as follows:
"… the principle is just the same in defamation cases as in any other cases, that the judge in his control of the proceedings will not leave a case to the jury if the jury could not properly find for the plaintiff. So if a plaintiff complains that words which have been published of him are defamatory a judge will withdraw the case if he decides that the words complained of are simply not capable of bearing a defamatory meaning. He will decide whether a reasonable man could (not would) regard the words as defamatory. If they are capable of being so regarded then it will be for the jury to decide whether or not the words did bear a...
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